Australian Bar Association Conference
COMMENTS DURING CHIEF JUSTICES’ SESSION AT AUSTRALIAN BAR ASSOCIATION/VICTORIAN BAR NATIONAL CONFERENCE, MELBOURNE, 27 OCTOBER 2016
I want to take this opportunity to say a few things about the challenges facing the Tasmanian Bar and the Tasmanian judiciary. I do not have anything to report as to exciting innovations in civil procedure or dispute resolution.
In our civil jurisdiction, mediation has been a part of the landscape since the 1990s, to such an extent that one of our robing rooms was converted into a mediation room with a round table many years ago. The statistics say it all. For example, the number of actions for damages for personal injuries commenced in the Supreme Court of Tasmania is running at around 200 to 250 per year. The number of those actions that go to trial has not exceeded three per year for quite some time. No doubt some plaintiffs simply give up, but the vast majority of personal injury cases settle, and the same is true for all types of claims for money.
As most of you probably know, Tasmania does not have a District Court or a County Court. Like the Supreme Courts of the ACT and the Northern Territory, our Court deals with all the work that would normally be undertaken at first instance by a District Court and a Supreme Court, as well as all appellate work. These days about 75 to 80% of our first instance work is in the criminal jurisdiction. In the civil jurisdiction, a very large proportion of our work is in administrative law areas, particularly judicial review applications and appeals in town planning cases. Old fashioned civil trials form a very small part of our work.
One significant consequence of this state of affairs is that there are very few younger lawyers with significant experience in the conduct of civil trials. Last week I was in Melbourne for a conference of appeal judges, at which an international visitor described the perception that appeal judges tend to be male, pale and stale. Those members of the Tasmanian Bar who remember the way to our civil courts tend to be a bit like that, though there are a few impressive younger exceptions.
In both our civil jurisdiction and our criminal jurisdiction, the pool of experienced counsel is shrinking. Nearly all criminal trials are legally aided. The Legal Aid Commission has maintained a policy of using in-house counsel for a large proportion of criminal trials for over 10 years. As a result of financial constraints, as well as a number of organisational decisions that have been made over the years, the remuneration that the Commission is able to offer members of the private profession is disturbingly small. Experienced criminal counsel are retiring, accepting appointments as judges and magistrates, and even getting suspended and struck off, and the people taking their place are too few.
Tasmania has a fused legal profession. But the number of lawyers choosing to practise at the Bar – that is, as barristers as distinct from barristers and solicitors – has been steadily growing in recent years. There also seems to be a trend towards the briefing of interstate counsel, particularly in the civil jurisdiction. The number of lawyers in firms who routinely appear as counsel in the higher courts appears to be diminishing.
The annual statistics published by the Productivity Commission show that Tasmania has fewer judges per 100,000 people than any other State but Queensland; fewer judicial officers per 100 finalisations than any other State but Queensland; the lowest net recurrent expenditure per finalisation of any Supreme Court; and a steadily increasing backlog in the criminal jurisdiction.
This year the Tasmanian Parliament has passed legislation permitting the appointment of part-time acting judges. Our Department of Justice has recently placed advertisements seeking expressions of interest in such positions from retired judicial officers. The idea is that acting judges would work intermittently, and get paid by the day or part thereof. If we are to tackle the backlog in criminal cases, we will need to dispose of them more quickly than they come in. That will require not just additional judicial resources, but also the deployment of additional resources from the Director of Public Prosecutions’ office and the Legal Aid Commission. Turning the ship around is not likely to be an easy process or a speedy one.
Importantly though, Tasmania remains a very pleasant place to live and to practise law.